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05.28.13

Holder’s Regrets and Repairs

How the attorney general feels about his own role in the Fox News case—and how he plans to prevent it from happening again. By Daniel Klaidman.

It was Friday, May 17, and officials at the Department of Justice had gotten word that The Washington Post was working on an explosive story: a reporter had obtained an affidavit for a search warrant to seize a Fox News journalist’s personal emails.

Controversy was already swirling around the DOJ over the recent revelation that federal prosecutors had seized the phone records of reporters and editors from the Associated Press in a separate leak probe. Media organizations, civil-liberties groups, and members of Congress were in an uproar about the AP case, which they regarded as an appalling intrusion on freedom of the press.

Now came the Post’s discovery of the Fox affidavit, which was part of a three-year-old FBI investigation into a State Department contract employee who had allegedly leaked highly classified information about North Korea. And this case had an ominous wrinkle that the AP case had lacked: in the affidavit, investigators had indicated that the reporter himself, James Rosen, might also be guilty of a crime—for simply soliciting the information.

DOJ officials, realizing the issue could turn into a press feeding frenzy, went into damage-control mode. Over the weekend they scrambled to prepare their response, including readying a press statement assuring that Justice had no plans to indict Rosen.

But for Attorney General Eric Holder, the gravity of the situation didn’t fully sink in until Monday morning when he read the Post’s front-page story, sitting at his kitchen table. Quoting from the affidavit, the story detailed how agents had tracked Rosen’s movements in and out of the State Department, perused his private emails, and traced the timing of his calls to the State Department security adviser suspected of leaking to him. Then the story, quoting the stark, clinical language of the affidavit, described Rosen as “at the very least ... an aider, abettor and/or co-conspirator” in the crime. Holder knew that Justice would be besieged by the twin leak probes; but, according to aides, he was also beginning to feel a creeping sense of personal remorse.

The sweeping seizure of the AP phone records had thrown Justice on the defensive. But at least in that case Holder had some personal insulation; having been interviewed by the FBI, he’d recused himself from the investigation and, thus, had not personally signed off on the subpoenas. In the Fox case, however, Holder knew he bore a direct measure of responsibility. He had approved a search-warrant application that equated a reporter’s newsgathering activities with criminal conduct. That put Holder at the center of the brewing controversy, all while the Obama administration was being buffeted over allegations that the IRS had targeted conservative groups and by the continuing Benghazi tempest.

By week’s end, Holder knew he had to be proactive in stemming the criticism and restoring the department’s credibility with the press. He and his advisers began exploring ways to reform the Justice Department’s internal guidelines for investigating leaks to safeguard the media against overly intrusive tactics. (Obama announced a review of the guidelines during a major speech on counterterrorism last Thursday.) Meanwhile, on Friday, Holder made a round of calls to Capitol Hill in an attempt to mollify concerned lawmakers. In calls to Sens. Charles Schumer (D-NY), Dick Durbin (D-Ill.), and Lindsey Graham (R-SC), Holder said he understood why there had been such an outcry over his department’s actions. As one of Holder’s advisers put it, the message was: “Look we get it. We understand why this is so controversial, and we’re ready to make changes to find the right balance.” At the same time, Holder enlisted their help to get a media-shield law passed in Congress. (On Sunday, Schumer announced the formation of a bipartisan “gang of eight” to press for the legislation.)

As attorney general, a position at the intersection of law, politics, and investigations, Holder has been at the center of partisan controversy almost since taking office. But sources close to the attorney general says he has been particularly stung by the leak controversy, in large part because his department’s—and his own—actions are at odds with his image of himself as a pragmatic lawyer with liberal instincts and a well-honed sense of balance—not unlike the president he serves. “Look, Eric sees himself fundamentally as a progressive, not some Torquemada out to silence the press,” says a friend who asked not to be identified. And yet late last week even the progressive Huffington Postwas calling for Holder to step down over the leaks furor. (Obama has continued to express confidence in his attorney general, and Holder has given no indication that he would step aside.)

On Sunday, politicians and pundits weighed in on the Holder controversy.

‘Look, Eric sees himself fundamentally as a progressive, not some Torquemada out to silence the press.’

In an interview, Holder acknowledged that there was considerable room for improvement in how Justice handles leak cases, casting the episode as a kind of teaching moment for his department and himself. “While both of these cases were handled within the law and according to Justice Department guidelines,” he told The Daily Beast, “they are reminders of the unique role the news media plays in our democratic system, and signal that both our laws and guidelines need to be updated.” He added, “This is an opportunity for the department to consider how we strike the right balance between the interests of law enforcement and freedom of the press.”

To begin the process of recalibrating that balance, Holder is initiating a dialogue with representatives of major media organizations. Invitations go out today, with the first meeting taking place possibly as early as this week. Holder’s aides say he is encouraging a no-holds-barred conversation with the goal of updating and strengthening DOJ guidelines. But Holder’s own personal soul searching has already begun, with, among other things, the question of why he signed off on an affidavit that in retrospect he believed may have crossed the line.

As an explanation, if not a justification, Justice officials say that the department’s leadership had come under withering pressure to investigate leaks from both within the intelligence community and Congress. On multiple occasions, Holder fielded calls from the CIA director and other top officials demanding leak investigations. Meanwhile, Congress was also on Holder’s case to staunch the leaks in national-security cases. On December 3, 2009—just a few months before he approved the affidavit in the Fox case—Holder, FBI director Robert Mueller, and director of national intelligence Dennis Blair were hauled before a secret session of the Senate Intelligence Committee to explain why they weren’t punishing more leakers. For its part, the White House never discouraged aggressive probes to find and punish leakers.

Justice officials also point to gaps in the DOJ guidelines to explain some of the more controversial actions taken by prosecutors. For one thing, unlike subpoenas to the media, search warrants are not even covered by the Justice Department’s guidelines. That meant that in the Rosen case, the decision to issue the search warrant was not subjected to the many layers of scrutiny that are required when subpoenas are issued for a reporter’s records or communications. The Rosen warrant, for example, bypassed the department’s Office of Public Affairs, which would have been uniquely suited to provide advice to the attorney general because of its sensitivity to the interests of the press.

But ultimately none of that fully explains why Holder would have signed off on such a controversial search warrant. Holder, his aides say, believes there may also be a cultural factor at the root of his decision. Prosecutors tend to have a somewhat insular mindset, not always able to see clearly beyond the walls of their cases. They are often dogged investigators, trained to vacuum up as much evidence as possible to sustain convictions in courts of law. That sometimes means taking maximum advantage of every law and procedural rule. It also can mean seeing every activity of those in their sights through a more sinister lens than may be justified.

Rosen had set up fairly elaborate methods to try to obscure his relationship with his source. He used pseudonyms to communicate with him and simple coded messages to indicate when they should talk. As Rosen’s activities were scrutinized in the department’s National Security Division, his behavior may have looked more to prosecutors like an espionage case than what it truly was: a journalist reporting on sensitive national-security matters, while trying to protect the identity of his source. Prosecutors even seized on Rosen’s use of “flattery” and his playing to the “ego and vanity” of his source as a reason for suspicion, a stunning conflation of basic reporting guile with spycraft.

Holder’s rise to attorney general, of course, wouldn’t have happened if he didn’t have some understanding of the interplay between politics and the press in Washington. But he’s also a product of the Justice Department and still, in many ways, has the mindset of the prosecutor he was for most of his career. “He’s a prosecutor, and prosecutors by nature push very hard,” says Matthew Miller, Holder’s former spokesman.

“Sometimes they go too far,” adds Miller, who remains close to Holder. “But that is not who he is, and I think he understands that the department needs to reconsider how it handles these cases, and you’re going to see him lead that process.”

But the problem won’t be solved with media-sensitivity training. Lawyers respond best to hard and fast rules and structures to enforce them. That is why Holder’s focus will be on pushing to update and improve his department’s internal guidelines for dealing with the media. While no adjustments to the guidelines will be proposed until after Holder receives input from media organizations, his aides say a number of changes are already being discussed.

Among them would be stating a clear presumption in the guidelines against seizing reporters’ work product, either through subpoena or search warrant. Currently, the guidelines require that prosecutors “take all reasonable steps to obtain the information through alternative sources or means.” (A presumption test would be a higher standard to overcome.) Another priority will be making sure that search-warrant applications are subjected to the same level of internal scrutiny that subpoenas currently receive before they are approved by the attorney general. Some changes, meanwhile, will involve simply bringing the rules into the Internet Age. Originally established in 1970 and updated in 1982 to include telephone records, they don’t even mention emails, texts, or other forms of digital communication, like social media.

Another possible reform under consideration would be the creation of stricter rules requiring advance notification before prosecutors can seize media phone records or information relating to other forms of communication. (In the AP case, the government secretly seized the phone records from 20 lines used by as many as 100 journalists.) While the guidelines currently say prosecutors must give prior notification before issuing a subpoena, there is an exception when doing so would “pose a substantial threat to the integrity of the investigation.” Some DOJ officials worry that loophole is being abused and that prosecutors may be invoking the exception to avoid protracted litigation with the targeted news organizations. (Federal prosecutors have been particularly keen to avoid clashes before Judge Leonie Brinkema in Virginia, who has quashed subpoenas aimed at the media.)

Perhaps the most significant structural flaw in the current system, however, is that the fox is guarding the henhouse. Prosecutors whose main interest is catching and convicting leakers call the shots on how aggressively to pursue reporters as part of their investigations. That is why, Holder believes, there is ultimately no better solution than passing a media-shield law that would place those decisions in the hands of an independent federal judge. But until then, Holder will be the judge—a little more experienced, and perhaps a little wiser.